A court has ordered Network Ten republish an apology to a US kink master over a report he claimed made out he was involved in his partner's death.
Ten had defended placing the clarification at the bottom of its website's terms of use, which a lawyer described as "the most logical location" for text of a video-based page.
"If anything, it was one of the least logical and least appropriate," Federal Court Justice Anna Katzmann said in a damning ruling on Monday.
"In effect, if not by design, publishing the clarification in this part of the website undermined its purpose."
Justice Katzmann said Ten's placing of the clarification under the Terms of Use was "calculated to frustrate or undermine its purpose" and "deprived" US man Dylan Hafertepen of an essential benefit he'd bargained for.
By insisting it had adhered to the terms of the agreement, Ten's conduct involved "cynical resort to the black letter", she said.
"Publishing the clarification in a place where it was unlikely to be seen by anyone, let alone by anyone who had seen or heard the publication the subject of the suit being compromised by the agreement, was an act of bad faith," she said.
"It was also inconsistent with Ten's obligation to do all things reasonably required to give effect to the agreement."
The 81-word message was a condition of a confidential, out-of-court settlement between the network and Mr Hafertepen in April.
Mr Hafertepen had claimed a November 2018 report on The Project defamed him by implying he played a role in his late partner's death.
Tank Hafertepen, formally known as Jack Chapman, died in the US after injecting himself with silicone. Tank had posted numerous photos publicly of his artificially enlarged testicles.
As part of the settlement, Mr Hafertepen released and discharged Ten and its associates from liability on a handful of conditions including Ten pay his legal costs and write him a private written apology he could show family and employers.
The website clarification, which was to run for 14 days, stated the network "did not intend to suggest and does not suggest that Mr Hafertepen had anything to do with (Tank's) death"
"If anyone took it to mean that, then Network 10 unreservedly retracts any such suggestion," it said.
But - after needing to help Mr Hafertepen's lawyers find the statement on the website - Ten was dragged back to court.
"It is notorious that most people do not read terms of use even when prompted to do so before obtaining access to digital service," Justice Katzmann said on Monday.
To find the clarification, the judge said a user had to scroll to the bottom of the 10play homepage, click on a small hyperlink and scroll through legal notices that, if printed, would take up 15 A4 pages.
"In the circumstances, it is difficult not to believe that the clarification was published there in order that it would not be seen," she said.
She ordered the clarification run again on The Project homepage
Justice Katzmann said Ten also acted unreasonably by not providing Mr Hafertepen copies of letters it sent media organisations that had republished The Project's story.
